Wright v. Nix

• Citation: 928 F.2d 270
• Decision Date: 18 March 1991
• Docket Number: No. 90-2004SI,90-2004SI
• Parties: Duane E. WRIGHT, Appellant, v. Crispus C. NIX, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 270

928 F.2d 270

Duane E. WRIGHT, Appellant, v. Crispus C. NIX, Appellee.

No. 90-2004SI.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 8, 1991.

Decided March 18, 1991.

Stephen J. Rapp, Waterloo, Iowa, for appellant.

Thomas D. McGrane, Des Moines, Iowa, for appellee.

Before ARNOLD, and WOLLMAN, Circuit Judges, and FLOYD R. GIBSON, Senior Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Wright appeals the district court's ¹ denial of his petition for habeas relief on the grounds that the state improperly excluded two non-white jurors from his venire panel. We conclude that Wright has failed to show cause for not directly raising this claim at his trial or in the appeal of his conviction by failing to show that his trial counsel's assistance was ineffective. Thus, we affirm the district court.

I. BACKGROUND

Wright was convicted of first degree murder in Black Hawk County, Iowa, in 1984. He is now serving a life sentence that was affirmed on direct appeal in 1985. Post-conviction relief proceedings and appeals in state court did not find fault with the proceedings which resulted in Wright's conviction. This habeas action was finally instituted in July 1989 in the Southern District of Iowa. Only one claim for relief exists for our consideration.

At Wright's trial, the prosecution exercised two of its peremptory strikes to remove two non-whites, one of Korean ancestry, the other, like Wright, a black person. Wright's trial counsel did not object to the strikes or in any other way preserve a complaint about the selection of the jury. Trial counsel testified at the state post-conviction hearing that he thought such strikes were immoral but not illegal. Ultimately, we must decide whether that conclusion amounted to ineffective assistance under the then-extant case law concerning a state's peremptory exclusion of minorities from jury service.

Neither the Iowa Court of Appeals nor the District Court found constitutionally deficient representation by Wright's trial counsel. Over a dissent, and despite its belief that Wright had shown a pattern of exclusion of blacks from criminal juries in Black Hawk County, the Iowa Court of Appeals affirmed denial of post-conviction relief to Wright because he had failed to demonstrate prejudice by his counsel's silence in the face of the state's strikes. Wright-Bey v. State, 444 N.W.2d 772 (Iowa App.1989). In his habeas action Wright did not seek an evidentiary hearing before the district court and relied on the transcripts from the state proceedings alone. After reviewing this record, the district court denied habeas relief and found that Wright had shown neither prejudice nor deficient service by his trial counsel.

II. DISCUSSION

Having failed to make an argument at trial or on direct appeal about the composition of his jury, Wright can only raise the question in a collateral federal attack on his state conviction if he can show cause and prejudice for his earlier omission. Teague v. Lane, 489 U.S. 288, 297-98, 109 S.Ct. 1060, 1067-68, 103 L.Ed.2d 334 (1989) (citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)) (other citations omitted). That cause, he argues, is the ineffective assistance of his trial counsel. Thus, before he can be heard as to his substantive jury claim, Wright must first demonstrate deficient assistance and resulting prejudice to him by his trial counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). ²

Part of that determination, however, does require discussion of the applicable constitutional law of state peremptory strikes. In that respect, this case is controlled by Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), and not by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), because Wright's direct appeal was concluded before Batson was handed down by the Supreme Court. See Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) (per curiam); cf. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Despite Judge Schlegel's ardent position that Teague would allow retroactive application of Batson in this case, Wright-Bey, 444 N.W.2d at 777-78 (Schlegel, J., dissenting), we believe that Allen and Griffith leave no room for us to reach that conclusion. And, in any event, Strickland must be taken up first.

"To sustain a claim of ineffective assistance of counsel, appellant must show that his lawyer's representation fell below an objective standard of reasonableness and that, but for these errors, there is a reasonable likelihood that the result of the proceeding would have been different." Isom v. Lockhart, 847 F.2d 484, 486 (8th Cir.1988) (citing Strickland ). Our first question must be whether Wright's trial counsel's failure to object to the peremptory strikes exercised by the prosecution "fell below an objective standard of reasonableness." Id. We answer in the negative.

Though we have independently examined the record of this case, an affirmative answer is all but foreclosed by Horne v. Trickey, 895 F.2d 497 (8th Cir.1990). In Horne we concluded that failure to raise a Swain argument on direct appeal was not ineffective assistance of appellate counsel, despite a preserved objection from trial. We noted that Swain, not Batson, applied and that "Horne's appellate counsel considered the Swain issue and decided not to raise it since the record did not contain sufficient evidence to support such a claim." Id. at 500. We would be inconsistent in our application of Strickland and in our measurement of ineffective assistance if we now concluded that the Swain standard for examining the use of peremptory challenges required a trial objection in this case, when we have only recently said that Swain did not require appellate argument where a trial objection had already been preserved. Further on this point, Wright cannot avail himself of Garrett v. Morris, 815 F.2d 509 (8th Cir.), cert. denied, 484 U.S. 898, 108 S.Ct. 233, 98 L.Ed.2d 191 (1987), wherein we granted the Writ for a Swain violation. In Garrett, a contemporaneous trial objection had been made, thus the petitioner was not required to leap the procedural hurdle of ineffective assistance. Wright first faces that logical vault, which we conclude he cannot make.

Some suggestion has been made, however, that Wright's trial counsel did not even know the state of the law with respect to peremptory challenges under Swain. We have been asked how we can gauge whether counsel's failure to object was deficient or not if he did not know the law. This is the wrong question. We need not ascertain whether Wright's trial counsel knew what the law required under Swain, though, of course, he should have known. We need only determine whether the law required that an objection to the striking of two non-white jurors be made in this case to prevent trial counsel's representation from falling below an objective standard of reasonableness.

As indicated, we do not believe that the law demanded such an objection. Swain's very difficult burden simply did not require that Wright's trial counsel object to the prosecution's two strikes as exercised in this case in order to provide minimal constitutional representation to Wright. By this statement we are not reaching, let alone deciding, the substantive Swain claim. We are only saying that failure to object to the striking of one black venire panel member and one Korean member was not deficient legal service for constitutional purposes. This point is unfortunately (but understandably) obfuscated by the Iowa Court of Appeals' determination that, in his post-conviction hearing, Wright demonstrated a pattern of discriminatory peremptory strikes by the state in Black Hawk County. Wright-Bey, 444 N.W.2d at 776. That determination is premature (and unnecessary) to the analysis we have made deciding the efficacy of Wright's trial counsel's representation. As the district court said, "[t]he trial attorney was reasonable in reaching the conclusion at the time that what seemed unfair was not...